Employment Relations Act 1999 (c. 26)

(The document as of February, 2008)

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(a) lay before each House of Parliament any guidance issued under this paragraph, and

(b) arrange for any such guidance to be published by such means as appear to him to be most appropriate for drawing it to the attention of persons likely to be affected by it.

Method of conducting collective bargaining

168 (1) After consulting ACAS the Secretary of State may by order specify for the purposes of paragraphs 31(3) and 63(2) a method by which collective bargaining might be conducted.

(2) If such an order is made the CAC--

(a) must take it into account under paragraphs 31(3) and 63(2), but

(b) may depart from the method specified by the order to such extent as the CAC thinks it is appropriate to do so in the circumstances.

(3) An order under this paragraph shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Directions about certain applications

169 (1) The Secretary of State may make to the CAC directions as described in sub-paragraph (2) in relation to any case where--

(a) two or more applications are made to the CAC,

(b) each application is a relevant application,

(d) the CAC has not accepted any of the applications.

(2) The directions are directions as to the order in which the CAC must consider the admissibility of the applications.

(3) The directions may include--

(a) provision to deal with a case where a relevant application is made while the CAC is still considering the admissibility of another one relating to the same bargaining unit;

(b) other incidental provisions.

(4) A relevant application is an application under paragraph 101, 106, 107, 112 or 128.

Notice of declarations

170 (1) If the CAC issues a declaration under this Schedule it must notify the parties of the declaration and its contents.

(2) The reference here to the parties is to--

(a) the union (or unions) concerned and the employer concerned, and

(b) if the declaration is issued in consequence of an application by a worker or workers, the worker or workers making it.

CAC's general duty

171 In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.

General interpretation

172 (1) References in this Schedule to the CAC are to the Central Arbitration Committee.

(2) For the purposes of this Schedule in its application to a part of Great Britain a working day is a day other than--

(a) a Saturday or a Sunday,

(b) Christmas day or Good Friday, or

(c) a day which is a bank holiday under the [1971 c. 80.] Banking and Financial Dealings Act 1971 in that part of Great Britain. "

Section 2.

SCHEDULE 2 Union Membership: Detriment

Introduction

1 The [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as provided in this Schedule.

Detriment

2 (1) Section 146 (action short of dismissal on grounds related to union membership or activities) shall be amended as follows.

(2) In subsection (1) for "have action short of dismissal taken against him as an individual by his employer" substitute "be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place".

(3) In subsection (3) for "have action short of dismissal taken against him" substitute "be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place".

(4) In subsection (4) for "action short of dismissal taken against him" substitute "a detriment to which he has been subjected as an individual by an act of his employer taking place".

(5) In subsection (5) for "action has been taken against him" substitute "he has been subjected to a detriment".

(6) After subsection (5) insert--

" (6) For the purposes of this section detriment is detriment short of dismissal. "

Time limit for proceedings

3 (1) Section 147 shall be amended as follows.

(2) Before "An" insert "(1)".

(3) In paragraph (a) of subsection (1) (as created by sub-paragraph (2) above) for the words from "action to which" to "those actions" substitute "act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them".

(4) After subsection (1) (as created by sub-paragraph (2) above) insert--

" (2) For the purposes of subsection (1)--

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period;

(b) a failure to act shall be treated as done when it was decided on.

(3) For the purposes of subsection (2), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act--

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. "

Consideration of complaint

4 (1) Section 148 shall be amended as follows.

(2) In subsection (1) for "action was taken against the complainant" substitute "he acted or failed to act".

(3) In subsection (2) for "action was taken by the employer or the purpose for which it was taken" substitute "the employer acted or failed to act, or the purpose for which he did so".

(4) In subsection (3)--

(a) for "action was taken by the employer against the complainant" substitute "the employer acted or failed to act";

(b) for the words from "took the action" to "would take" substitute "acted or failed to act, unless it considers that no reasonable employer would act or fail to act in the way concerned".

(5) For subsection (4) substitute--

" (4) Where the tribunal determines that--

(a) the complainant has been subjected to a detriment by an act or deliberate failure to act by his employer, and

(b) the act or failure took place in consequence of a previous act or deliberate failure to act by the employer,

paragraph (a) of subsection (3) is satisfied if the purpose mentioned in that paragraph was the purpose of the previous act or failure. "

Remedies

5 In section 149 for "action" there shall be substituted "act or failure"--

(a) in subsections (1), (2) and (3)(a) and (b), and

(b) in subsection (6), in the first place where "action" occurs.

Awards against third parties

6 In section 150(1)--

(a) in paragraph (a) for "action has been taken against the complainant by his employer" there shall be substituted "the complainant has been subjected to detriment by an act or failure by his employer taking place";

(b) in paragraph (b) for "take the action" there shall be substituted "act or fail to act in the way".

Section 4.

SCHEDULE 3 Ballots and notices

Introduction

1 The Trade Union and Labour Relations (Consolidation) Act 1992 shall be amended as provided by this Schedule.

Support of ballot

2 (1) Section 226 (requirement of ballot before action by trade union) shall be amended as follows.

(2) In subsection (2) (industrial action to be regarded as having support of ballot only if certain conditions are fulfilled) in paragraph (a)(ii) for "231A" substitute "231", omit the word "and" at the end of paragraph (b), and after paragraph (b) insert--

" (bb) section 232A does not prevent the industrial action from being regarded as having the support of the ballot; and " .

(3) After subsection (3) insert--

" (3A) If the requirements of section 231A fall to be satisfied in relation to an employer, as respects that employer industrial action shall not be regarded as having the support of a ballot unless those requirements are satisfied in relation to that employer. "

Documents for employers

3 (1) Section 226A (notice of ballot and sample voting paper for employers) shall be amended as follows.

(2) In subsection (2)(c) (notice of ballot must describe employees entitled to vote) for "describing (so that he can readily ascertain them) the employees of the employer" substitute "containing such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees".

(3) After subsection (3) insert--

" (3A) These rules apply for the purposes of paragraph (c) of subsection (2)--

(a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);

(b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with paragraph (c) of subsection (2).

(3B) In subsection (3) references to employees are to employees of the employer concerned. "

Entitlement to vote

4 In section 227 (entitlement to vote in ballot) subsection (2) (position where member is denied entitlement to vote) shall be omitted.

Separate workplace ballots

5 The following shall be substituted for section 228 (separate workplace ballots)--

" 228 Separate workplace ballots

(1) Subject to subsection (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace.

(2) This section does not apply if the union reasonably believes that all those members have the same workplace.

(3) Subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who--

(a) are entitled to vote by virtue of section 227, and

(b) have that workplace.

(4) In this section and section 228A "workplace" in relation to a person who is employed means--

(a) if the person works at or from a single set of premises, those premises, and

(b) in any other case, the premises with which the person's employment has the closest connection.

228A Separate workplaces: single and aggregate ballots

(1) Where section 228(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of subsections (2) to (4) is satisfied in relation to it.

(2) This subsection is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union who is affected by the dispute.

(3) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who--

(a) according to the union's reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation, and

(b) are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

(4) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

(5) For the purposes of subsection (2) the following are members of the union affected by a dispute--

(a) if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in subsection (1)(a), (b) or (c) of section 244 (meaning of "trade dispute"), members whom the decision directly affects,

(b) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(d) of that section, members whom the matter directly affects,

(c) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(e) of that section, persons whose membership or non-membership is in dispute,

(d) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(f) of that section, officials of the union who have used or would use the facilities concerned in the dispute. "

Voting paper

6 (1) Section 229 (voting paper) shall be amended as follows.

(2) After subsection (2) (voting paper must ask whether voter is prepared to take part in a strike or industrial action short of a strike) insert--

" (2A) For the purposes of subsection (2) an overtime ban and a call-out ban constitute industrial action short of a strike. "

(3) At the end of the statement in subsection (4) (statement that industrial action may be a breach of employment contract to be set out on every voting paper) insert--

" However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later. "

(4) In the definition of "strike" in section 246 (interpretation) after "means" there shall be inserted "(except for the purposes of section 229(2))".

Conduct of ballot: merchant seamen

7 In section 230 (conduct of ballot) for subsections (2A) and (2B) there shall be substituted--

" (2A) Subsection (2B) applies to a merchant seaman if the trade union reasonably believes that--

(a) he will be employed in a ship either at sea or at a place outside Great Britain at some time in the period during which votes may be cast, and

(b) it will be convenient for him to receive a voting paper and to vote while on the ship or while at a place where the ship is rather than in accordance with subsection (2).

(2B) Where this subsection applies to a merchant seaman he shall, if it is reasonably practicable--

(a) have a voting paper made available to him while on the ship or while at a place where the ship is, and

(b) be given an opportunity to vote while on the ship or while at a place where the ship is. "

Inducement

8 After section 232 insert--

" 232A Inducement of member denied entitlement to vote

Industrial action shall not be regarded as having the support of a ballot if the following conditions apply in the case of any person--

(a) he was a member of the trade union at the time when the ballot was held,

(b) it was reasonable at that time for the trade union to believe he would be induced to take part or, as the case may be, to continue to take part in the industrial action,

(d) he was induced by the trade union to take part or, as the case may be, to continue to take part in the industrial action. "

Disregard of certain failures

9 After section 232A there shall be inserted--

" 232B Small accidental failures to be disregarded

(1) If--

(a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and

(b) the failure is accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot,

the failure (or failures) shall be disregarded.

(2) The provisions are section 227(1), section 230(2) and section 230(2A). "

Period of ballot's effectiveness

10 In section 234 (period after which ballot ceases to be effective) for subsection (1) there shall be substituted--

" (1) Subject to the following provisions, a ballot ceases to be effective for the purposes of section 233(3)(b) in relation to industrial action by members of a trade union at the end of the period, beginning with the date of the ballot--

(a) of four weeks, or

(b) of such longer duration not exceeding eight weeks as is agreed between the union and the members' employer. "

Notice of industrial action

11 (1) Section 234A (notice to employers of industrial action) shall be amended as follows.

(2) In subsection (3)(a) (notice relating to industrial action must describe employees intended to take part in industrial action) for "describes (so that he can readily ascertain them) the employees of the employer who" substitute "contains such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees whom".

(3) After subsection (5) insert--

" (5A) These rules apply for the purposes of paragraph (a) of subsection (3)--

(a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);

(b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with paragraph (a) of subsection (3). "

(4) In subsection (7)--

(a) insert at the beginning the words "Subject to subsections (7A) and (7B),", and

(b) in paragraph (a) the words "otherwise than to enable the union to comply with a court order or an undertaking given to a court" shall cease to have effect.

(5) After subsection (7) insert--

" (7A) Subsection (7) shall not apply where industrial action ceases to be authorised or endorsed in order to enable the union to comply with a court order or an undertaking given to a court.

(7B) Subsection (7) shall not apply where--

(a) a union agrees with an employer, before industrial action ceases to be authorised or endorsed, that it will cease to be authorised or endorsed with effect from a date specified in the agreement ("the suspension date") and that it may again be authorised or endorsed with effect from a date not earlier than a date specified in the agreement ("the resumption date"),

(b) the action ceases to be authorised or endorsed with effect from the suspension date, and

(c) the action is again authorised or endorsed with effect from a date which is not earlier than the resumption date or such later date as may be agreed between the union and the employer. "

(6) In subsection (9) for "subsection (7)" substitute "subsections (7) to (7B)".

Sections 7, 8

SCHEDULE 4 Leave for Family Reasons Etc

Part I Maternity Leave and Parental Leave

New Part VIII of Employment Rights Act 1996

" Part VIII

Chapter I Maternity Leave

(1) An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.

(2) An ordinary maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

(3) Regulations under subsection (2)--

(a) shall secure that no ordinary maternity leave period is less than 18 weeks;

(b) may allow an employee to choose, subject to any prescribed restrictions, the date on which an ordinary maternity leave period starts.

(4) Subject to section 74, an employee who exercises her right under subsection (1)--

(a) is entitled to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

(b) is bound by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

(5) In subsection (4)(a) "terms and conditions of employment"--

(a) includes matters connected with an employee's employment whether or not they arise under her contract of employment, but

(b) does not include terms and conditions about remuneration.

(6) The Secretary of State may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this section.

(7) An employee's right to return under subsection (4)(c) is a right to return--

(a) with her seniority, pension rights and similar rights as they would have been if she had not been absent (subject to paragraph 5 of Schedule 5 to the [1989 c. 24.] Social Security Act 1989 (equal treatment under pension schemes: maternity)), and

(b) on terms and conditions not less favourable than those which would have applied if she had not been absent.

72 Compulsory maternity leave

(1) An employer shall not permit an employee who satisfies prescribed conditions to work during a compulsory maternity leave period.

(2) A compulsory maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

(3) Regulations under subsection (2) shall secure--

(a) that no compulsory leave period is less than two weeks, and

(b) that every compulsory maternity leave period falls within an ordinary maternity leave period.

(4) Subject to subsection (5), any provision of or made under the [1974 c. 37.] Health and Safety at Work etc. Act 1974 shall apply in relation to the prohibition under subsection (1) as if it were imposed by regulations under section 15 of that Act.

(5) Section 33(1)(c) of the 1974 Act shall not apply in relation to the prohibition under subsection (1); and an employer who contravenes that subsection shall be--

(a) guilty of an offence, and

(b) liable on summary conviction to a fine not exceeding level 2 on the standard scale.

73 Additional maternity leave

(1) An employee who satisfies prescribed conditions may be absent from work at any time during an additional maternity leave period.

(2) An additional maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

(3) Regulations under subsection (2) may allow an employee to choose, subject to prescribed restrictions, the date on which an additional maternity leave period ends.

(4) Subject to section 74, an employee who exercises her right under subsection (1)--

(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

(b) is bound, for such purposes and to such extent as may be prescribed, by obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

(5) In subsection (4)(a) "terms and conditions of employment"--

(a) includes matters connected with an employee's employment whether or not they arise under her contract of employment, but

(b) does not include terms and conditions about remuneration.

(6) The Secretary of State may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this section.

(7) The Secretary of State may make regulations making provision, in relation to the right to return under subsection (4)(c), about--

(a) seniority, pension rights and similar rights;

(b) terms and conditions of employment on return.

74 Redundancy and dismissal

(1) Regulations under section 71 or 73 may make provision about redundancy during an ordinary or additional maternity leave period.

(2) Regulations under section 71 or 73 may make provision about dismissal (other than by reason of redundancy) during an ordinary or additional maternity leave period.

(3) Regulations made by virtue of subsection (1) or (2) may include--

(a) provision requiring an employer to offer alternative employment;

(b) provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part X).

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